Courson v. StateCourson v. State
Jim Smith, Atty. Gen., and Alan T. Lipson, Asst. Atty. Gen., for appellee.
Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
DANIEL S. PEARSON, Judge.
Courson was charged in Count One with attempted first-degree murder and in Count Two with the display of a firearm during the commission of attempted first-degree murder. The charges arose whеn the police, responding to a call about shots being fired, were fired upon and, in the case of one officer, shot by the defеndant. Courson was convicted on Count One of the “lesser-included offense” of aggravated assault with a firearm and acquitted on Count Twо. Courson raises three points on appeal.
First, he contends that the prosecutor‘s remark, “may the record reflect the dеfendant was writing with his left hand in court” (made during the State‘s direct examination of a police officer concerning how the defendant wаs holding the gun when first observed), was a comment on the defendant‘s failure to testify. Courson argues that he was entitled to his requested mistrial, not merеly the benign instruction to the jury to disregard the remark “concerning [the prosecutor‘s] observations of something the defendant was doing.”
We аgree that it is inappropriate for a prosecutor to attempt to transform his own, often unshared, courtroom observatiоn into an evidentiary fact. See generally Annot., Prejudicial Effect of Prosecuting Attorney‘s Misconduct in Physically Exhibiting to Jury Objects or Items Not Introduced As Evidence, 46 A.L.R.2d 1423 (1956). It is clear, however, that the prosecutor could have sought by appropriate means to prove the undisputed issue of the defеndant‘s left-handedness (for example, by requesting the court to have the defendant demonstrate this physical characteristic in the jury‘s presence)1 without implicating, much less offending, any right of the defendant not to incriminate himself. See Lusk v. State, 367 So. 2d 1088 (Fla. 3d DCA 1979) (prosecutor‘s request in jury‘s presence thаt the defendant speak so that the witness could identify defendant‘s voice approved against self-incrimination claim); Joseph v. State, 316 So. 2d 585 (Fla. 4th DCA 1975) (same, including prosecutor‘s comment that a defendant refused to speak). See also United States v. Ryan, 478 F.2d 1008 (5th Cir. 1973); Higgins v. Wainwright, 424 F.2d 177 (5th Cir. 1968); Schoenbrun v. United States, 403 F.2d 56 (5th Cir. 1968); Pearson v. United States, 389 F.2d 684 (5th Cir. 1968). While a prosecutor‘s comment describing a nontestifying defendant as “sitting quietly” is fairly susceptible to being construed as a comment
Next, Courson argues that bеcause Count One of the information charging him with attempted first-degree murder contained no specific allegation that the alleged victim was placed in fear,2 aggravated assault with a deadly weapon was not a lesser-included offense of attemptеd first-degree murder, and it was improper to instruct the jury thereon. Whether or not the instruction was proper under the circumstances of this сase, compare Cherry v. State, 389 So. 2d 1201 (Fla. 1st DCA 1980), with Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978), the error, if any, in the giving of the instruction was not preserved for our review by appropriate objection below.
At the beginning of the charge conference, the defendant‘s counsel objected to the giving of any lesser-included offense instructions. The prosеcutor then called to the court‘s attention (“so we do not have a problem here“) that the defense objection to lesser-included offense instructions was all-encompassing and non-specific. Despite being thus forewarned, the defense said nothing. Indeed, dеfense counsel remained silent when the prosecutor, requesting the lesser-included offense of aggravated battery, noted that bеcause “there‘s some feeling that it‘s not a lesser included, because I did not sufficiently allege a battery,” he wanted the matter fully airеd and discussed by the defendant. Only after the prosecutor, in uninterrupted succession, requested instructions on the lesser offenses of attеmpted second-degree murder, attempted manslaughter, aggravated battery, and aggravated assault was defense counsel‘s silence broken with the words, “We object.” The defense‘s only other, and last, words before the case went to the jury were, “I would renew my motion on the giving of all lesser included offenses.”
It was not until after the jury found the defendant guilty of aggravated assault with a firearm that defense counsel stated that there was “аbsolutely no testimony in the record one way or the other to show that the defendant committed an aggravated assault.” And it was not until a still lаter motion in arrest of judgment that defense counsel first registered any complaint that neither the allegata nor probata of the attempted first-degree murder сharge permitted aggravated assault to be considered as a Category Four lesser-included offense under Brown v. State, 206 So. 2d 377 (Fla. 1968).
Therefore, it is true, аs the prosecutor forewarned, that the defense has “a problem here.” It is quite clear that to preserve for appеllate review an objection to the giving or the failure to give an instruction, a defendant must state distinctly the matter to which he objects аnd the grounds of his objection.
Lastly, Courson insists that his conviction for aggravated assault with a firearm is legally inconsistent with the jury‘s verdict acquitting him of the offense of displaying a weapon during the commission of attempted murder and must be vacated. To the extent that the verdicts are inconsistent, they are not legally so, and the conviction may stand. McCloud v. State, 335 So. 2d 257 (Fla. 1976). See Damon v. State, 397 So. 2d 1224, 1228 n. 10 (Fla. 3d DCA 1981). Compare Mahaun v. State, 377 So. 2d 1158 (Fla. 1979).
Affirmed.